By Anita Chaplin, an LLB student at the University of Adelaide, with a strong interest interest in disability rights, including legal issues associated with guardianship.
Guardianship occurs under a legal order giving a guardian power to make decisions about a ‘protected’ person’s life, including medical and accommodation decisions. According to human rights law, as set out in the United Nations Convention on the Rights of Persons with Disabilities 2006, all persons with disabilities have the right to equal recognition before the law. These means that they are presumed to have capacity to make decisions about their lives (Article 12). When persons with disabilities are placed under a guardianship order, their right to legal capacity is taken away. For young persons with disabilities this is particularly significant because it robs them of the autonomy associated with adulthood, once again placing their lives under the control of someone else, their guardian(s).
The pervasive of guardianship came to light in the #FreeBritney campaign, where the rights of Britney Spears to make decisions about her life were placed in the hands of her conservator, who made wide-ranging decisions about every aspect of her life including her performances and relationships. In South Australia, persons can be placed under a guardianship order under the Guardianship and Administration Act 1993 (SA), which effectively removes their right to exercise their legal capacity.
The Act focuses on a medical model of capacity as it currently stands, where disability is reduced to a medical phenomenon of impairment. However, legal capacity is consistent with all persons even if a person is deemed to have an impaired decision-making capacity medically, as legal capacity cannot be taken away. Proposed amendments to the South Australian Act plan to make positive changes to the Act, but need to be expanded further to be more aligned with human rights standards.
The Draft Bill and the changes it seeks
A draft Bill has been released, proposing changes to the current South Australian Guardianship Act. The draft Bill, the Guardianship and Administration (Miscellaneous) Amendment Bill 2021 (SA), proposes amendments mainly around the terminology of the South Australian Act. Whilst changes in terminology such as from ‘mental incapacity’ to ‘impaired decision-making capacity’ would bring the Act more in line with human rights standards, the shift does not represent a substantive change in language from the current Act in that it focuses on impairment and inability to manage affairs, ultimately failing to acknowledge legal capacity. In contrast, there are guiding principles proposed in the Bill which focus on decision-making being aligned with the will and preferences of the person subject to the order, which is a welcome change from the previous best interests framework. However, these are still only guiding principles which allow for only a loose requirement to follow them. In General Comment 1, the Committee on Convention the Rights of Persons with Disabilities (CRPD Committee) express the view that substitute decision-making is impermissible, and that supported decision-making frameworks are the human rights standard. There is mention of supported decision-making in the Bill, but there is no hard and fast requirement for this form of decision-making and substitute decision-making is still permitted.
The solution
Whilst there are welcome changes with the proposed amendments made in the Bill, the Act still has a long way to go to be aligned with human rights standards. So, what is the solution?
The legislation of the State of Victoria may provide an answer.
In Victoria, supported decision-making arrangements have recently been introduced in their guardianship legislation. Under the Victorian model of supported guardianship, all persons are presumed capable of making a decision unless there is evidence demonstrating otherwise.
In the second reading speech to the Victorian legislation, it was made clear that the changes aimed to bring guardianship law in line to reflect a contemporary understanding of decision-making capacity and recognise the rights of persons with disabilities to legal capacity and making decisions about their life was expressed. This legislation seeks to strike a balance between the traditional view of guardianship, to ensure mechanisms for protection, and recognising the rights of persons coming under guardianship orders. Whilst the Act still provides ‘traditional’ guardianship in the form of substitute decision-making, the decision-maker appointed must give practicable and appropriate effect to the person’s will and preferences and may only override this in order to prevent serious harm. Additionally, substitute decision-makers are only appointed in relation to specific matters, and additionally duties are imposed upon them to ensure they act honestly in their role. As upholding a person’s will and preferences in decision-making arrangements is first and foremost, when this cannot be obtained the best interpretation of these preferences should be implemented.
The UN CRPD Committee recommended that substitute decision-making regimes should be abolished and replaced by supported decision-making regimes. Many scholars have spoken about what supported decision-making regimes could look like. Piers Gooding states that supported decision-making should allow for a person to appoint their representative, and that persons with a disability should be allowed the ‘dignity of risk’. Risk is crucial in decision-making and can be mitigated with other laws to prevent the abuse, neglect or exploitation of a person with impaired decision-making ability, as the Victorian legislation demonstrates.
From looking at these other mechanisms of supported decision making in line with human rights standards, it is suggested that the SA Act should move toward presuming legal capacity, limiting substitute decision-making to specific matters in a limited capacity, and that the will and preferences of the person should always be prioritised.
Persons with a disability should be allowed the dignity of risk, and legislation should mitigate this by placing civil penalties to prevent exploitation. Supported guardianship should be available and reviewed periodically to ensure persons have the opportunity to build their capacity, have orders further limited, and to have autonomous lives to the degree possible.
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